Sunshine Week: Early reviews positive for new records law

Sunday

Mar 12, 2017 at 6:32 AMMar 12, 2017 at 6:32 AM

Haven Orecchio-Egresitz @HavenCCT

In the nearly three months since an overhauled Massachusetts Public Records Law took effect, the state's supervisor of public records has responded to over 80 percent more appeals than in the same time period last year, according to the agency’s online database.

The new law, which went into effect Jan. 1, requires agencies and towns to respond to requests for records within 10 days and limits how much an agency can charge for preparing these records. This is the first time the state's records law has been updated since 1973.

Attorney Jeffrey J. Pyle, of the Boston law firm Prince Lobel Tye, said the increase in appeals to public record request responses from last year to this year indicates that the public is testing the new measures.

“It tends to suggest that people are making more use of the law and are eager to test out the new enforcement,” Pyle said.

On Thursday, Falmouth Town Clerk Michael Palmer was working on guidelines to inform the public about the records access officers assigned in each town department and how these people can be reached. The law requires that each municipality post information on their website by July 1 telling residents how to access public records.

“We had a training session led by the town counsel,” Palmer said. “I don’t think anything is overburdensome.”

Palmer is now responsible for tracking all record requests sent to the department heads, who, in turn, let him know when their responses are sent.

“I’m tracking to make sure they respond to me when the records have been fulfilled,” he said. “We may be getting more formal requests for public records, but because I’m tracking them, I may just be more aware of them.”

Yarmouth Town Clerk Philip Gaudet also held a training session for his department heads in January.

The event touched on changes to the law, and also served as a refresher course for the parts in effect for the past four decades, according to Gaudet.

“I recall there was some relief among staff because they learned that if the document doesn't exist we don't have to create it,” he said.

Since January, the town has received an increase in the number of public records requests and the requests have been “much broader,” Gaudet said.

The biggest challenge his office faces, he says, is the time it takes to review the requests and documents to make sure they don’t fall under exemptions to the public records law.

“It’s sort of an unfunded mandate,” Gaudet said.

Critics of the original law often cited high fees for record-gathering, which this new measure limits. Now, agencies can no longer charge more than $25 an hour for gathering records, with the first four hours free. Fees for black-and-white paper copies can’t exceed 5 cents per page.

“This is a great thing for the public," he said. "Fees are generally, in the spirit of the law, fees are reduced. I think that’s a good thing for a citizen making a request.”

The law authorizes the attorney general to take whatever measures deemed necessary to ensure compliance, including court action, and judges are allowed to award attorney fees to people who successfully sue for release of public records.

In November, Attorney General Maura Healey filed suit against three county prosecutors, including Cape and Islands District Attorney Michael O'Keefe, for failing to provide data to the public related to criminal court cases.

The prosecutors have cited conflicts between the Criminal Offender Record Information law and the public records law.

Pyle said law enforcement officials often use the CORI law and the investigatory exemption to the public records law to withhold documents from the public.

Pyle was named by the ACLU of Massachusetts as its representative to a legislative working group that will look at at the impediments of disclosing law enforcement records.

“The scope of some of the exemptions need a closer look,” Pyle said, adding that the new law didn’t make substantive changes to any of the 21 exemptions to the public records law.

The public is still not able to seek records from state legislators and their staff or members of the state court system.

“I will say that Massachusetts is an exception in that regard,” Pyle said referring to the legislative exemption. “There are many, many states where at least some legislative records are subject to the open records law.”

Brian McNiff, a spokesman for Secretary of the Commonwealth William F. Galvin, said it's still too early to assess the impact of the changes in the law, but the supervisor of records has turned out an increased amount of decisions to appeals.

“It’s something that doesn’t satisfy everyone,” he said of the law. “It’s working well at this point.”

— Follow Haven Orecchio-Egresitz on Twitter: @HavenCCT.

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